Blog

May 09, 2013

How the New Changes in the Family Law Courts Impacts Mediation Clients

As of January 1, 2013, all family courts in California are required to practice case management and oversight, echoing the system used for years in other civil departments. This means that when people file for divorce in California they now have to appear at a mandatory hearing to design the content of their next hearing, complete their Preliminary Financial Disclosure within 60 days, and continue to appear at periodic mandatory hearings to have decisions made about their divorce based on the judges’ perception of proper pacing.  The implementation of this civil-style case management is meant to address the complaint of divorces “dragging on and on.”

I offer you the following information so you can be informed about some of the effects of these new requirements, and to help you make the wisest choices for yourself as you move forward in your divorce process.

• • Some counties are refusing to implement the new case management requirements.  Those counties are basically responding that “We cannot offer these administratively-intensive services, accompanied by heavy budget cuts, without sacrificing quality of care. If we instituted these requirements we would be rushing parties through a system without being able to offer them a competent analysis of their situation and options, or a well-reasoned resolution.”
    • They are shining a light on the reality that family law courts are now being forced to sacrifice quality of care for speed of disposition
  • Members of the family law Bar keep asking judges “Why are families expected to go through a system that mimics one used for business disputes? Don’t we all recognize that often when a case is filed that one of the people is surprised or both people are grieving? Forcing them to immediately focus on gathering documents and appearing at hearings will create huge problems, and maybe end up with hostility and antagonism running the process, rather than giving people the space to transition at a pace that’s best for them to be able to make reasoned decisions and possibly cooperate.”
    • So far the judges are responding “Don’t look at us, look at the legislature, the California Supreme Court and the Judicial Council.  We didn’t do this, we’re just doing what we’re told.”
  • There is currently no “opt-out” for people using consensual dispute resolution services such as mediation or Collaborative Practice.  In the few counties which already have case management systems in place, people previously could opt out by assuring the court that they were in a CDR process. In contrast, the new state-wide case management system does not have that option, so judges are now asking to be regularly involved and updated on the status of the mediation or Collaborative process.  This raises many questions, such as the appropriateness of such requests in a confidential process, and the fairness of the extra attorney’s fees that will be billed to continually communicate case status to the court.
    • When I asked a well-respected local judge about this intrusion into the mediation process the judge explained that “Part of the new requirements mandates we have a very high percentage of our cases completed, from the day they are filed to a judgment, within a certain time frame (18 months)…and if we don’t achieve that mandate percentage, we’re concerned our funding might be cut even more. We are already running on a shoestring.  We must be proactive in meeting the requirements.”
  • So now Californians must make a choice.  One option is to file and go into a fast system that guarantees a quick divorce, but not a quality result.  The other is to go into mediation or Collaborative Practice to be given the space and time to develop a quality agreement using professionals focused on their situation and their transition needs, recognizing that there will be an extra layer of professional fees for the mediator-attorney to communicate with the court.
    • One concern the family law Bar is talking about is that these two options, now farther apart in quality of care than ever before, makes two completely different experiences for California families based on levels of affluence.  Wealthier people can pay for a high quality, non-adversarial, interdisciplinary, supportive transition process, while people who can’t afford it end up in the low-funded, high volume public system.
  • So the question we may ask ourselves is: with all that is known today about how most families thrive in a non-adversarial, interdisciplinary divorce environment, how did our public family court system end up prioritizing speed of disposition over quality of result?